WILLIAM E. COVINGTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed January 29, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00271-CR
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WILLIAM E. COVINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F05-54824-LI
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OPINION
Before Justices Morris, Lang, and Lang-Miers
Opinion By Justice Lang
        William E. Covington appeals the trial court's judgment convicting him of unlawful possession of a controlled substance, cocaine, in an amount of less than 1 gram, enhanced by two prior convictions. In his sole issue on appeal, Covington argues the trial court erred when it denied his motion to suppress. We conclude the trial court did not err. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Raymond Rutlege lived with Covington in room number 927 at the Days Inn for eight months. Covington became tired of paying for Rutlege's rent, food, and drugs and told Rutlege to leave. After arguing with Covington, Rutlege left the room and telephoned the police.         Officer Rudloff and his partner responded to Rutlege's 9-1-1 telephone call and met with Rutlege in the lobby of the Days Inn. Rutlege stated: (1) he called 9-1-1; (2) he had a verbal argument with Covington over money; (3) Covington wanted Rutlege out of the room; (4) Covington was out of control; (5) Rutlege left the room because he was concerned the argument might become physical; (6) Rutlege's possessions were still in the room; (7) he did not feel safe returning to the room; (8) Covington had medical problems; (9) several people were staying in the room; and (10) the people in the room were using drugs.
        Officer Rudloff and his partner, wearing their full uniform dress, went to room number 927 to investigate Rutlege's complaint of a disturbance, i.e., Rutlege's argument with Covington. While standing in the hallway, the officers could hear several people talking and loud noises coming from the room. Before he was able to knock, the door to room number 927 was opened by a woman wearing “skimpy” clothing. Officer Rudloff pushed the door open a little further to make certain there was no one lurking behind the door. A man standing behind the woman saw Officer Rudloff and put his hand in his pocket. Fearing the man had a weapon, Officer Rudloff went approximately four feet into the room, grabbed the man's wrist, told him to keep his hand in his pocket, and patted down the outside of the pocket. There was no weapon in the man's pocket. Officer Rudloff scanned the room. There were approximately six people moving about the room. Also, ten feet from where Officer Rudloff was holding the man's wrist, he saw Covington sitting on the edge of the bathtub. Covington was naked, except for a towel over his lap. In one hand, Covington was holding a lighter and, in the other hand, he held a rock of cocaine. When Covington saw Officer Rudloff, he set the rock of cocaine on a black wallet that was laying on top of the toilet. Officer Rudloff observed a crack pipe on the edge of the bathtub beside Covington's leg.
        Officer Rudloff instructed the people in the room to get on their knees and put their hands on top of their heads because he was concerned for his safety. He also pulled out his Taser, pointed it at Covington and told him to lay on the floor. The officers handcuffed the men in the room, including Covington, conducted a “subject check,” and secured the evidence. Two additional rocks of cocaine were found inside Covington's wallet. The officers released everyone, but Covington. Covington was allowed to dress. Then, Officer Rudloff arrested Covington for possession of cocaine.
        Covington was indicted for unlawful possession of a controlled substance, cocaine, in an amount of less than 1 gram, which was enhanced by two prior convictions. After the jury was selected, the trial court held a hearing on Covington's motion to suppress. During the hearing, Covington did not dispute that he was a drug addict or that he had cocaine. Rather, he claimed the cocaine was not in plain view, he did not give Officer Rudloff permission to enter his room, and he did not believe the officers were in fear of their safety. The trial court denied Covington's motion to suppress. Covington told the trial court he wanted to plead guilty. Also, Covington and the State withdrew their election to have the jury assess punishment. Covington pleaded guilty and the jury found him guilty. Then, Covington pleaded true to the two enhancements. The trial court found the enhancements true and assessed Covington's punishment at two years of confinement.
 
II. MOTION TO SUPPRESS
 
        In his sole issue, Covington argues the trial court erred when it denied his motion to suppress. Covington argues the cocaine should have been suppressed because there was no probable cause or exigent circumstances that would permit the officers to enter the room without a warrant. The State responds that exigent circumstances allowed Officer Rutlege to make a limited entry into the room to prevent the man from potentially removing a weapon from his pocket and to conduct a pat down search of the pocket. Also, the State contends that once legally inside the room, the officer was entitled to seize, without a warrant, the cocaine because it was in plain view.
A. Standard of Review
 
        A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Smith v. State, 176 S.W.3d 907, 913 (Tex. App.-Dallas 2005, pet. ref'd); Randolph, 152 S.W.3d at 769. A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Randolph, 152 S.W.3d at 769.
B. Applicable Law
 
        The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. Similarly, Article 1, § 9 of the Texas Constitution provides, in part, that a person shall be secure in their persons and houses from all unreasonable seizures and searches. Tex. Const. art. 1, § 9. Searches or seizures conducted without a warrant are unreasonable per se under the Fourth Amendment, with a few specifically defined and well- established exceptions. See Katz v. U.S., 389 U.S. 347, 357 (1967); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). The burden is on the State to justify a warrantless search of a residence. See Brimage v. State, 918 S.W.2d 466, 482 (Tex. Crim. App. 1994). Anyone, be it a law enforcement officer or a common citizen, has the right to approach a person's front door. Cornealius v. State, 900 S.W.2d 731, 734 (Tex. Crim. App. 1995).
        In order for a warrantless search to be justified, the State must show that: (1) it had probable cause at the time the search was made; and (2) there were exigent circumstances that made it impracticable to procure a warrant. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Exigent circumstances justifying a warrantless entry include: (1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; (2) preventing destruction of evidence or contraband; and (3) protecting the officers from persons whom they reasonably believe to be present, armed, and dangerous. See McNairy, 835 S.W.2d at 107. While inside a residence, officers may seize evidentiary items found in plain view if two requirements are met: (1) the initial intrusion was proper, or the police had a right to be where they were when the discovery was made; and (2) it was immediately apparent to the police that they had evidence before them. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000); Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).
C. Application of the Law to the Facts
 
        During the hearing on the motion to suppress, Officer Rudloff testified he went to the room to investigate Rutlege's complaint of a disturbance. Outside the room, he heard several people talking and loud noises. Before he could knock on the door, a woman opened the door startling him. For his safety, Officer Rudloff pushed the door open a little further to make certain there was no one lurking behind the door. After seeing Officer Rudloff, a man standing behind the woman put his hand in his pocket. Officer Rudloff believed the man was reaching for a weapon and entered approximately four feet into the room to insure his safety. Without going any further into the room, Officer Rudloff scanned the room and observed in the bathroom, approximately ten feet away, Covington holding a lighter and a rock of cocaine with a crack pipe laying beside him. He stated the entire incident occurred in approximately five seconds.
        Officer Rudloff reasonably approached the room to investigate Rutlege's complaint of a disturbance. While standing in front of the open door to the room, he observed a man put his hand in his pocket and believed the man was reaching for a weapon. Officer Rudloff was justified in entering the room because exigent circumstances existed that allowed him insure his safety. Once permissibly inside the room, Officer Rudloff could seize the cocaine because it was in plain view. Accordingly, we conclude the trial court did not err when it denied Covington's motion to suppress.
        Covington's sole issue is decided against him.
III. CONCLUSION
 
        The trial court did not err when it denied Covington's motion to suppress. The trial court's judgment is affirmed.
 
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060271f.u05